War Crimes: Confronting Atrocity in the Modern World

In this chapter, I examine the difficulties and complexities surrounding the investigation of war crimes allegations, turning them into specific charges, and then finding evidence to support the charges that will stand up in a court of law. I explain why war crimes investigators must work to a much higher standard of proof than the media and human rights groups, since investigations must be directed toward the production of material that makes the guilt of an accused not likely, or even probable, but rather certain beyond a reasonable doubt.

The first difficulty is political. Where strong emotions are involved (as with atrocities and war crimes), many tend to want justice—or at least revenge—quickly, and some are intolerant of the bureaucratic necessities of uncovering the evidence, issuing warrants, and conducting trials. This problem seems endemic in war crimes trials, because in almost all cases the guilt of the accused is publicly assumed, and the trial itself is seen merely as a way of providing a cloak of legality for the desire to exact revenge. When reality intervenes, as it did in the projected trial of Kaiser Wilhelm II in 1919, the result may be panic and confusion. So it was foreseeable that, as late as May 1945, after months of discussion about the fate of the Nazi leaders, “no real thought had been given to the difficulties of extracting sufficient high-quality evidence … to make a conviction look plausible.” In turn, this was because earlier discussion had been “based on the assumption of guilt.”¹ Indeed, it was universally assumed in the Allied capitals that the German leadership would be put to death: They had better be convicted of

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